The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) establishes rights and benefits for employees and employment applicants who have served in the military or have engaged in other forms of protected governmental service. On August 10, 2021, the Third Circuit Court of Appeals revived a proposed class action filed by a Navy reservist FedEx employee by holding that, under USERRA, short-term military leave must be treated as paid leave if the employer offers “comparable” forms of short-term paid leave for non-military reasons. The court specifically referenced that FedEx pays employees who miss work for other reasons — such as jury duty, illness, and bereavement – and remanded the case to the district court to determine if those forms of leave are comparable to military leave. This decision, which follows a Seventh Circuit decision reaching a similar conclusion, could require employers to pay for military leave if they provide pay for other types of leave. Employers should review their military leave policies to determine what, if any, pay may be required in light of other voluntary paid leave benefits that they offer.
